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IN THE SUPREME COURT OF FLORIDA
CASE NO. 84,700
FERNANDO FERNANDEZ,
Appellant,
vs.
THE STATE OF FLORIDA,
Appellee.
______________________________________________________________
AN APPEAL FROM THE CIRCUIT COURT OF THE ELEVENTHJUDICIAL CIRCUIT
IN AND FOR DADE COUNTY, FLORIDA
CRIMINAL
DIVISION_______________________________________________________________
BRIEF OF APPELLEE
ROBERT A. BUTTERWORTHAttorney GeneralTallahassee, Florida
RANDALL SUTTON Assistant Attorney GeneralFlorida Bar No.
0766070Office of Attorney GeneralDepartment of Legal
AffairsRivergate Plaza -- Suite 950444 Brickell AvenueMiami,
Florida 33131PH. (305) 377-5441FAX (305) 377-5654
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TABLE OF CONTENTS
TABLE OF CITATIONS . . . . . . . . . . . . . . . . . . . .
vi
POINTS ON APPEAL . . . . . . . . . . . . . . . . . . . . . .
1
STATEMENT OF THE CASE AND FACTS . . . . . . . . . . . . . . . 2
A. INTRODUCTION . . . . . . . . . . . . . . . . . . . 2 B. GUILT
PHAS E . . . . . . . . . . . . . . . . . . . . 3 C. PENALTY PHASE .
. . . . . . . . . . . . . . . . . 15
SUMMARY OF THE ARGUMENT. . . . . . . . . . . . . . . . . .
26
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . 30
I.DEFENDANT WAS NOT ENTITLED TO A MISTRIAL BASEDUPON THE
PROSECUTOR’S OPENING STATEMENT. . . . 30
II.THE TRIAL COURT PROPERLY DENIED DEFENDANT’S MOTION,AFTER 75
DAYS OF PREPARATION TIME HAD ALREADY BEENALLOWED, FOR AN ADDITIONAL
CONTINUANCE. . . . . . 33
III.THE TRIAL COURT PROPERLY SENTENCED DEFENDANTTO DEATH. . . .
. . . . . . . . . . . . . . . . . 38
1. Defendant’s Age . . . . . . . . . . . . . . 39
2. Dures s . . . . . . . . . . . . . . . . . . . 41
3. No Significant Criminal History . . . . . . 43
4. Nonstatutory Mitigation . . . . . . . . . . 44
(a) Family History . . . . . . . . . . . . 45
(b) Psychological/Educational History . . . 47
(c) Remors e . . . . . . . . . . . . . . . . 48
(d) Cooperation with the Authorities . . . 50
(e) Potential for Rehabilitation . . . . . 51
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(f) Alternative Sentence . . . . . . . . . 52
(g) Abreu’s Life Sentence . . . . . . . . . 55
5. Harmless Erro r . . . . . . . . . . . . . . . 57
6. Proportionality . . . . . . . . . . . . . . 58
(a) Proportionality as to Defendant’s Culpability . . . . . . .
. 59
(b) Proportionality as to Similar Cases . . 63
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . .
68
CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . .
68
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- iv -
TABLE OF CITATIONS
CASES PAGE
Amazon v. State ,487 So. 2d 8 (Fla. 1986) . . . . . . . . . . .
. . . . . . . 40
Barwick v. State ,660 So. 2d 685 (Fla. 1995) . . . . . . . . . .
. . . . . . . 55
Booker v. State ,397 So. 2d 910 (Fla. 1981) . . . . . . . . . .
. . . . . . . 44
Cabana v. Bullock ,474 U.S. 376 (1986) . . . . . . . . . . . . .
. . . . . . . 62
Campbell v. State ,571 So. 2d 415 (Fla. 1990) . . . . . . . . .
. . . . . . 38, 53
Cardona v. State ,641 So. 2d 361 (Fla. 1994) . . . . . . . . . .
. . . . . . . 56
Carter v. State ,576 So. 2d 1291 (Fla. 1989) . . . . . . . . . .
. . . . 48, 64
Coleman v. State ,610 So. 2d 283 (Fla. 1992) . . . . . . . . . .
. . . . . . . 57
Colina v. State ,634 So. 2d 1077 (Fla. 1994) . . . . . . . . . .
. . . . . . 57
Cook v. State ,581 So. 2d 141 (Fla. 1991) . . . . . . . . . . .
. . . . 64, 67
Cooper v. State ,492 So. 2d 1059 (Fla. 1986) . . . . . . . . . .
. . . . . . 40
Dailey v. State ,594 So. 2d 254 (Fla. 1991) . . . . . . . . . .
. . . . . . . 32
Downs v. State ,572 So. 2d 895 (Fla. 1990) . . . . . . . . . . .
. . . . . . 57
CASES PAGE
DuBoise v. State ,520 So. 2d 260 (Fla. 1988) . . . . . . . . . .
. . . . . . . 63
-
- v -
Enmund v. Florida ,458 U.S. 782 (1982) . . . . . . . . . . . . .
. . . 58, 59, 61
Fitzpatrick v. State ,437 So. 2d 1072 (Fla. 1983) . . . . . . .
. . . . . . . . . 43
Freeman v. State ,563 So. 2d 73 (Fla. 1990) . . . . . . . . . .
. . . . . . . 67
Garcia v. State ,492 So. 2d 360 (Fla. 1986) . . . . . . . . . .
. . . . . 40, 56
Green v. State ,641 So. 2d 391 (Fla. 1994) . . . . . . . . . . .
. . . . . . 55
Hannon v. State ,638 So. 2d 39 (Fla. 1994) . . . . . . . . . . .
. . . . . . 57
Hartley v. State , 21 Fla. L. Weekly S391, S393 (Fla. Sept. 19,
1996) . . . . . 31
Heath v. State ,648 So. 2d 660 (Fla. 1994) . . . . . . . . . . .
. . 64, 65, 66
Jackson v. State ,366 So. 2d 752 (Fla. 1978) . . . . . . . . . .
. . . . . . . 57
Jackson v. State ,502 So. 2d 409 (Fla. 1986) . . . . . . . . . .
. . . . . . . 59
Johnson v. State ,660 So. 2d 637 (Fla. 1995) . . . . . . . . . .
. . . . . . . 46
Jones v. State ,569 So. 2d 1234 (Fla. 1990) . . . . . . . . . .
. . . . . . 52
Jones v. State ,648 So. 2d 669 (Fla. 1994) . . . . . . . . . . .
. . . . 39, 55
CASES PAGE
Kight v. State ,512 So. 2d 922 (Fla.1987) . . . . . . . . . . .
. . . . . . 46
King v. State ,623 So. 2d 486 (Fla. 1993) . . . . . . . . . . .
. . . . . . 32
Kokal v. State ,
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492 So. 2d 1317 (Fla. 1986) . . . . . . . . . . . . . . . .
40
Krawczuk v. State ,634 So. 2d 1070 (Fla. 1994) . . . . . . . . .
. . . . . . . 55
Lara v. State ,464 So. 2d 1173 (Fla. 1985) . . . . . . . . . . .
. . . . . 46
Lowe v. State ,650 So. 2d 969 (Fla. 1994) . . . . . . . . . . .
. . 55, 64, 66
Maqueira v. State ,588 So. 2d 221 (Fla. 1991) . . . . . . . . .
. . . . . . . . 43
Merck v. State ,664 So. 2d 939 (Fla. 1995) . . . . . . . . . . .
. . . . . . 40
Mills v. State ,462 So. 2d 1075 (Fla. 1985) . . . . . . . . . .
. . . . 48, 52
Nibert v. State ,574 So. 2d 1059 (Fla. 1992) . . . . . . . . . .
. . . . 39, 50
Nixon v. State ,572 So. 2d 1336 (Fla. 1990) . . . . . . . . . .
. . . . . . 53
Occhicone v. State ,570 So. 2d 902 (Fla. 1990) . . . . . . . . .
. . . . . . 30, 31
Palmes v. Wainwright ,460 So. 2d 362 (Fla. 1984) . . . . . . . .
. . . . . . . . . 63
Pettit v. State ,591 So. 2d 618 (Fla. 1992) . . . . . . . . . .
. . . . . . . 55CASES PAGE
Porter v. State ,564 So. 2d 1060 (Fla. 1990) . . . . . . . . . .
. . . . . . 64
Pulley v. Harris ,465 U.S. 37 (1984) . . . . . . . . . . . . . .
. . . . . . . 58
Quince v. State ,414 So. 2d 185 (Fla. 1982) . . . . . . . . . .
. . . . . . . 44
Robinson v. State ,610 So. 2d 1288 (Fla. 1992) . . . . . . . . .
. . . . . . . 57
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- vii -
Rogers v. State ,511 So. 2d 526 (Fla. 1987) . . . . . . . . . .
. . . . . 48, 53
Sireci v. State ,587 So. 2d 450 (Fla. 1991) . . . . . . . . . .
. . . . . . . 42
Slawson v. State ,619 So. 2d 255 (Fla. 1993) . . . . . . . . . .
. . . . . 39, 44
Smith v. State ,641 So. 2d 1319 (Fla. 1994) . . . . . . . . . .
. . 64, 65, 66
State v. Bloom ,497 So. 2d 2 (Fla. 1986) . . . . . . . . . . . .
. . . . . . 56
State v. Henry ,456 So. 2d 466 (Fla. 1984) . . . . . . . . . . .
. . . . . . 64
Stein v. State ,632 So. 2d 1361 (Fla. 1994) . . . . . . . . . .
. . . . . . 31
Steinhorst v. Singletary ,638 So. 2d 33 (Fla. 1994) . . . . . .
. . . . . . . . . . . 56
Tafero v. State ,403 So. 2d 355 (Fla. 1981) . . . . . . . . . .
. . . . . . . 57
Taylor v. State ,630 So. 2d 1038 (Fla. 1993) . . . . . . . . . .
. . . . . . 48CASES PAGE
Thompson v. State ,648 So. 2d 692 (Fla. 1994) . . . . . . . . .
. . . . . . . . 55
Tison v. Arizona ,481 U.S. 137 (1987) . . . . . . . . . . . . .
. . . . . 62, 63
Troedel v. State ,462 So. 2d 392 (Fla. 1984) . . . . . . . . . .
. . . . . . . 57
Tyson [sic] v. Arizona ,107 S. Ct. 1676 (1987) . . . . . . . . .
. . . . . . . . . . 60
Valdes v. State ,626 So. 2d 1316 (Fla. 1993) . . . . . . . . . .
. . . . . . 35
Valle v. State ,581 So. 2d 40 (Fla. 1991) . . . . . . . . . . .
. . . . 46, 47
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- viii -
Van Poyck v. State ,564 So. 2d 1066 (Fla. 1990) . . . . . . . .
. . . . . . . . 63
Walls v. State ,641 So. 2d 381 (Fla. 1994) . . . . . . . . . . .
. . . . . . 39
Walton v. State ,547 So. 2d 622 (Fla. 1989) . . . . . . . . . .
. . . . . . . 44
Washington v. State ,362 So. 2d 658 (Fla.1978) . . . . . . . . .
. . . . 44, 45, 51
Watson v. State ,651 So. 2d 1159 (Fla.1994) . . . . . . . . . .
. . . . . . . 32
Watts v. State ,593 So. 2d 198 (Fla. 1992) . . . . . . . . . . .
. . . . . . 67
Wickham v. State ,593 So. 2d 191 (Fla. 1991) . . . . . . . . . .
. . . . . 58, 65
Wike v. State ,596 So. 2d 1020 (Fla. 1992) . . . . . . . . . . .
. . . 35, 36CASES PAGE
Williams v. State ,492 So. 2d 1501 (Fla. 1986) . . . . . . . . .
. . . . . . . 32
Williamson v. State ,511 So. 2d 289 (Fla. 1987) . . . . . . . .
. . . . . . . . . 57
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POINTS ON APPEAL(Restated)
I.DEFENDANT WAS NOT ENTITLED TO A MISTRIAL BASEDUPON THE
PROSECUTOR’S OPENING STATEMENT.
II.THE TRIAL COURT PROPERLY DENIED DEFENDANT’SMOTION, AFTER 75
DAYS OF PREPARATION TIME HADALREADY BEEN ALLOWED, FOR AN
ADDITIONALCONTINUANCE.
III.THE TRIAL COURT PROPERLY SENTENCED DEFENDANTTO DEATH.
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STATEMENT OF THE CASE AND FACTS
A. INTRODUCTION
Defendant was charged, along with codefendants Pablo San
Martin, Leonardo Franqui, Ricardo Gonzalez, and Pablo Abreu, in
an
indictment filed on February 4, 1992, in the Eleventh
Judicial
Circuit in and for Dade County, Florida, case number
92-2141(A),
with: (1) the premeditated or felony murder with a firearm
of
Steven Bauer, a law enforcement officer acting in the course of
his
duties; (2) the armed robbery with a firearm of the Kislak
Bank
and Michelle Chin; (3) the aggravated assault with a firearm
of
Michelle Chin; (4) the aggravated assault with a firearm of
LaSonya Hadley; (5) the unlawful possession of a firearm
during
the commission of a felony; (6) the grand theft of the motor
vehicle of Rafael Armengol; (7) the burglary of the motor
vehicle
of Rafael Armengol; (8) the grand theft of the motor vehicle
of
Elias Cantero; and (9) the burglary of the motor vehicle of
Elias
Cantero. Counts (3) and (5) were nolle prossed before trial.
(R.
1-6).
Abreu pled guilty prior to trial, and the defendants moved
to
sever their trials from that of the remaining codefendants
based
upon their allegedly inconsistent statements given to the
police.
(R. 89). The motion was granted as to Defendant, and the
court
ruled that the case would be tried jointly with two juries, (A)
for
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Fernandez and (B) for the remaining defendants. (R. 170-76).
B. GUILT PHASE
On the morning of January 3, 1992, Dorett Ellis went to the
Kislak National Bank in North Miami to make a deposit. (T.
1111).
She arrived shortly before the bank opened, around 7:55 and
waited
in her car, a red Cougar, in the drive through lane. There was
a
car in front of her with two men in it. There was also a car
on
the left side with two men in it. Then an officer wearing a
police
uniform walked out the door with the tellers. Two men jumped
out
of the cars, and ran to the front, firing a gun. They jumped
out
of the car and fired three or four shots simultaneously. (T.
1113,
1115). The officer went down. The men ran toward the officer
and
then they ran back to the car and drove off in a southerly
direction. (T. 1114).
Elijah Battle was seated on the left side of the northbound
bus on 7th Avenue when he heard three gunshots. (T. 1126-27).
He
looked out the window to the west and saw an older Chevrolet
come
screeching out. (T. 1128). Battle saw the driver in the car.
He
could not see the passenger side of the car from up in the
bus.
(T. 1130). The car turned southbound, and then turned right,
to
the west. (T. 1131). Battle also saw a red Cougar come out
right
after the Chevy. (T. 1133).
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Later in the trial, Elijah Battle was recalled and testified
that prior to trial he was never shown any photos. After
testifying, he informed the prosecutor that he had seen the
driver
of the Caprice in court. Battle identified Franqui as the
driver.
In court was the first time he had seen Franqui since the
murder.
(T. 1993-94).
LaSonya Hadley was a drive-through teller at the Kislak
National Bank branch at 134th Street and 7th Avenue. (T.
1150).
She arrived at work each morning at 7:45. When her coworker
Michelle arrived, they would get the money from the vault and go
to
the outside booths. (T. 1151). They kept $15,000-20,000 in a
cash
drawer. They would wait for the police officer to come and
take
them outside. (T. 1152). The police officer always dressed in
a
North Miami Police Department uniform with patches on his shirt
and
a gun on a belt holster. The officer would look out the
small
window on the door to check if it was safe and then they would
go.
(T. 1153). The officer would walk them to the drive through
booth
and make sure the door was locked. (T. 1154). He would give
them
a few minutes to set up, and then he would move the chains to
let
the cars in.
Officer Steven Bauer was the officer who always accompanied
them on Fridays. She had worked with Bauer for about a year and
a
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half. Bauer was great to work with; he was funny and made
Friday,
a long day, fun. On Friday she worked 8 a.m. to 6 p.m. in
the
drive through. (T. 1155). Bauer worked the whole day. (T.
1156).
Hadley’s coworker Michelle Chin Watson detailed the same
standard
morning procedures as Hadley. (T. 1166-67)
On January 3, 1992, the weather was sunny. (T. 1156).
Michelle arrived around 7:50 a.m. They went to the vault and
got
their cash trays, and then told Officer Bauer they were ready
to
go. Bauer commented that it was going to be a busy day. It
was
going to be busy because it was a “Social Security Friday.”
Bauer
went to the door to check on the parking lot. (T. 1157). Then
he
unlocked the door. Hadley went first, then Michelle, then
Bauer.
He was singing a little song: “Jesus, Jesus, it’s going to be
a
busy day for you guys.” As Hadley was putting the key into
the
lock to the booth, she heard people getting out of a car.
She
opened the door and dived in. Then she opened the door to
see
where Bauer was. He was trying to get his gun out of the
holster.
There were two men coming toward her from the cars. When they
drew
closer, she saw four men, all of whom had guns. Bauer tried to
get
his gun out. Hadley dived for the booth. She went for the
alarm,
and laid there waiting, because she still had her money in
her
hand. Then she heard three or four shots. She heard Bauer
cry
out. He said he was shot. She got up and went back outside.
She
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picked up his head and put it in her lap. (T. 1158-59, (T.
1162-
63). He asked her if she was all right. (T. 957). Hadley
asked
Bauer if he was all right, and he said not to worry because he
was
only shot in the leg. She realized that there was too much
blood;
that it had to be more than that. She was kneeling inside
the
drive through area, with Bauer resting in her lap from the
waist
up. He bled all over her. Then Michelle came over and the
branch
manager arrived, and they waited for the police to come. (T.
1160). After a few minutes, Bauer stopped responding to
questions.
Then the police arrived and took over and took her aside. When
she
saw the men come from the cars with guns, she was scared. They
did
not take her money. (T. 1162).
Watson also verified that on the date in question Steven
Bauer
was the officer who escorted them. He had a uniform with
patches
and a gun on his belt. (T. 1167). On January 3, 1992, Bauer
opened the back door as usual. They went outside, Hadley
first,
then Watson, then Bauer, who closed the door. When they were
walking forward, Watson heard a yell from some men in the
drive
through. (T. 1169). She continued to walk toward the drive
through. She kept walking until she heard shots. Then she
prostrated herself and set the cash drawer down in front of
her.
(T. 1170). Someone came and took the cash drawer from her.
After
she heard the car drive away, she turned to where Bauer was.
She
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walked over to him and heard him say “Oh, God.” (T. 1171).
He
also asked if they were okay. He talked about where he had
been
shot and tried to get them not to worry about him. (T. 1172).
She
felt scared while it was happening. She did not give anyone
permission to take the cash drawer. (T. 1173).
When the police arrived, Bauer was still alive, and they
tried
to prep him for Rescue, taking off his clothing and weapons,
and
yelling at him and trying to keep him warm. His gun was
already
out of the holster, lying in a pool of blood by his head.
Bauer
was in shock and pretty nervous. (T. 1175-79, 1185-86).
Bauer’s
gunbelt, watch, knife, handcuffs, and hand-held radio were also
at
the scene. Bauer’s weapon had 15 rounds in it, which was its
capacity. (T. 1249-55). The gun had not been fired. (T.
1261).
Two vehicles were located two blocks west of the bank. The
vehicles were both gray Chevrolet Caprices. Both engines
were
running, but neither had keys in the ignition, and had been
broken
into. (T. 1194). There were no people present. (T. 1195).
There
was an alley that ran the two blocks from where the cars were
to
the bank parking. (T. 1196).
Rafael Armengol testified that his 1986 Chevrolet was stolen
from the parking lot of his apartment building at 4th Street and
NW
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1 A babalao is like a priest in the Santaria faith.
(T.1404).
- 8 -
72 Avenue on January 2, 1992. (T. 1308-11). Elias Cantero
testified that his gray Chevrolet Caprice was stolen from his
place
of employment, Miami Technical College at 7601 W Flagler Street
on
January 2, 1992. (T. 1314-17).
On January 3, 1992, Defendant was at the home of Claudio
Prado
watching television. An ad came on the television regarding
the
death of a police officer. Defendant told Prado that he was one
of
the people involved in the case. (T. 1405). Defendant told
Prado
he wanted to see a babalao. 1 (T. 1406). Prado took him to see
a
babalao named Lazaro Hernandez who lived nearby. (T. 1406).
The
television was on there, and after they came in, the ad
regarding
Bauer’s death came on again and Defendant became agitated.
(T.
1408).
Lazaro Hernandez, the babalao, saw Defendant on January 3,
1992. (T. 1426-27). Defendant became very nervous when the
news
about the robbery came on the television. (T. 1427). The
news
showed a car that Defendant told Hernandez was involved in
the
robbery. (T. 1428). At Defendant’s request, the babalao gave
Defendant a bracelet and performed a ritual to protect him.
(T.
1436). Defendant came to him seeking protection from justice.
(T.
-
2 Presumably he was referring to codefendant Franqui.
3 Presumably he was preferring to codefendant
RicardoGonzalez.
4 Maritza was Defendant’s girlfriend
- 9 -
1452).
Sanchez met Defendant at the TGK jail facility around May of
1992. (T. 1457-58, 1497). Sanchez and Defendant became
friendly
while Sanchez was a trustee there. (T. 1497). Defendant told
Sanchez that a black friend had spoken to him about a robbery
plan
and that Defendant then “stole” the robbery so he could do it
on
his own. (T. 1498). Defendant told Sanchez that he had bought
the
.38 and the 9mm used in the robbery from Maritza’s
daughter’s
boyfriend. (T. 1499). Defendant also told Sanchez that there
were
three cars involved: one belonged to “Frank” 2 and the other
two
were stolen. Defendant stole the cars himself, so they could
use
them to rob the bank. Defendant told Sanchez that there were
five
people involved in the robbery including Defendant. The
black
friend was not there. He said that “Frank” and “Rick” 3 were
supposed to get out and do the actual taking. Defendant was one
of
the drivers of one of the stolen cars. (T. 1501-02). After
the
robbery they drove the stolen cars to where “Frank’s” car was
and
then went to Maritza’s 4 house, where they divided the money
and
then split up. (T. 1502-03). Defendant bought Maritza a
waterbed
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- 10 -
with part of the money, and also rented an apartment with part
of
it.
Defendant told also Sanchez that he and Maritza went to a
babalao for a charm to protect Defendant from the police.
(T.
1504). The babalao subsequently turned Defendant in. (T.
1504).
Sanchez contacted the police by himself. (T. 1506). Sanchez
did
not receive any deal or reward for testifying. (T. 1509).
Sanchez
testified (on cross) that Defendant did not appear to be sorry
for
the crimes he had committed. (T. 1516).
Gary Cromer testified that at the end of 1991, Cromer’s knew
someone whose girlfriend worked at the Kislak National Bank.
Cromer and this friend devised a plan to rob the bank. (T.
1464).
The plan was to rob the drive-through tellers. Prior to
January
1992, Cromer shared the plan with Defendant. (T. 1465). By
that
time Cromer’s friend had decided not to participate in the
robbery
plan. Cromer had meetings with Defendant at the home of
Defendant’s girlfriend, Maritza. (T. 1466). The plan was to
snatch the trays from the tellers at gunpoint when the came out
to
the drive through. After that, Defendant met a couple of
times
with Cromer at his house. (T. 1467). They also met at an Amoco
in
Carol City. Defendant had four or five Spanish-speaking
friends
with him in a van and they all wanted to see the bank.
Cromer
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- 11 -
would only go if his friend was allowed to come, but they said
no,
so Cromer did not go. (T. 1468). Later that evening Defendant
and
his friends returned, and Cromer went with them and showed them
the
bank. Cromer showed them which door the tellers came out of,
and
where the tellers walked. (T. 1470). Cromer did not tell
them
that anyone accompanied the tellers. (T. 1471). Although
Cromer
expected to be a part of the robbery, he had no contact with
Defendant or his friends between the time he showed them the
bank
and the day the robbery occurred. Cromer did not participate
in
the actual robbery. (T. 1472). Cromer did not make the plan
himself. He was present when it was made. (T. 1490). He did
not
intend to participate in the robbery when he showed Defendant
the
bank. (T. 1490). Only Defendant was present for the planning
meetings. Defendant’s friends were not. (T. 1493). Cromer
did
not know any of the others and would not have told them about
the
robbery or showed them where the bank was if Defendant was
not
there. (T. 1494).
Technician Thomas Charles examined Franqui’s Regal on
January
18, 1992. The car had been repainted white and appeared to
originally have been blue.
Metro-Dade fingerprint technician Richard Laite compared
various latents with standards of the defendants. He
determined
-
- 12 -
that of eight latents of value from the Caprice with the tag
number
FIV 13C, five were matches. (T. 1974-75). Prints from
Defendant
were on the outside right front door, the outside left front
window, the rear edge of the driver’s window frame, and the
outside
of the hood. (T. 1976). There was one match with Franqui,
from
the outside left front door. (T. 1976). None of the prints
from
the other Caprice (tag number JMI 86J) matched any of the
defendants. (T. 1977).
Firearms expert Robert Kennington tested two guns recovered
from the Miami River. The first was a .357 magnum, capable
of
firing .38 projectiles. The other was a 9mm semiautomatic.
(T.
2019-21). Kennington also examined two projectiles and some
fragments that were taken from Bauer’s body and submitted to him
by
the medical examiner’s office. (T. 2024). “A” was a .38; “B”
was
a 9mm bullet. (T. 2027). Kennington determined that the “A”
bullet was fired from the .357 found in the river. (T. 2028).
The
“B” bullet was fired from the 9mm found in the river. (T.
2029).
Bullet “C” from the scene was also fired from the .357. (T.
2030).
All three matches were to the exclusion of any other gun in
the
world. (T. 2030). Fragments “D” were consistent with the 9mm,
but
were insufficient to positively exclude their having been fired
by
any other 9mm. (T. 2031). Casing “M” was conclusively fired
by
the 9mm from the river, to the exclusion of any other gun in
the
-
- 13 -
world. (T. 2032). “A” and “C” were separate bullets.
Therefore
the .357 was fired twice at the scene. Likewise, fragments
“D”
were not part of bullet “B,” which was whole. (T. 2032).
Therefore a minimum of four shots were fired at the scene.
(T.
2034).
Forensic Pathologist Dr. Jay Barnhart of the Dade County
Medical Examiner’s Office, performed the autopsy on Bauer on
January 3, 1992. (T. 2039). Bauer had a gunshot wound to his
left
thigh. There was an entrance wound and no associated exit.
(T.
2041). Bullet “B” was located in Bauer’s hip. (T. 2051).
An additional gunshot wound entered the back of Bauer’s neck
and went downward through his heart and lodged where the
ribs
joined with the abdominal organs. (T. 2046). This was bullet
“A”.
(T. 2052).
Wound “B” would not have been fatal, but would have been
quite
painful. Wound “A” was fatal standing alone. The cause of
death
was gunshot wounds. (T. 2052-53).
Wound “A” was not consistent with Bauer and the shooter
standing and facing each other. It was consistent with Bauer
being
first shot in the leg, and then falling either face down or
back
-
5 Certain proceedings involving Defendant were not includedin
the record on appeal. The State has contemporaneously moved
tosupplement the record with the relevant excerpts from
thetranscripts prepared for the appeal taken by
Defendant’scodefendant, Leonardo Franqui, which is presently
pending beforethe Court in Franqui v. State , No. 84,701.
References will be to“Fr. T. ___.”
- 14 -
down and then being shot in the back of the neck. (T.
2054-55).
The State rested, (T. 2055), the defense rested without
presenting a case, (T. 2096), and after closing argument and
instruction, the jury retired to consider its verdict. (Fr. T.
5
1976-89, 2007-21) The jury returned a verdict of guilty as
charged
on all counts. (Fr. T. 2193, 451-53).
C. PENALTY PHASE
At the penalty phase proceeding before the jury, the State
relied upon the evidence presented during the guilt phase
trial.
(T. 2147). The defense presented the testimony of
Defendant’s
parents, sister, and psychologist Gary Schwartz.
Lourdes Fernandez, age 49, was Defendant’s mother. (T.
2147).
She had been married to Defendant’s father for 27 years. They
had
two children, Defendant and his sister. (T. 2148). They had
lived
in Miami since 1980. (T. 2148). They lived in Atlanta for
two
years, from 1983-85. (T. 2149). Defendant was 22, born in
1972.
Defendant was not particularly close to any relatives other
than
-
- 15 -
his parents, sister, and Lourdes’s grandmother who lived with
them.
(T. 2149). She died five years before trial. Defendant felt
bad
at the time. (T. 2150). Defendant had problems in school and
did
not like to study. He was “always” sent to the school
psychologist. Around 1986 or 1987, Defendant tried to poison
himself. (T. 2152). Defendant’s mother used cocaine for a
time.
(T. 2154). She “committed the error” of telling Defendant
she
would rather he used drugs at home than on the streets. In
retrospect she felt it would have been better to have given him
a
stronger anti-drug message, but she was afraid of losing him at
the
time. (T. 2154). Her husband was hired one time to transport
some
cocaine, and got arrested. (T. 2155). She sent Defendant out
to
sell a kilo of cocaine to raise the money for his father’s
bond.
(T. 2156). Defendant was 14 or 15 at the time. Prior to the
arrest
Defendant was not aware of his father’s involvement.
On cross, Defendant’s mother explained that she was
concerned
about losing Defendant because he threatened to call HRS when
she
disciplined him. (T. 2157). This started when he was about
nine
years old. (T. 2158). Defendant quit school when he turned
16.
His mother told him he should stay in school. (T. 2158).
Defendant got married at that time. (T. 2160). Defendant
worked
for a car dealer at that time. The “poison” was a jar of
Nyquil.
(T. 2161). Defendant would exaggerate things to get
attention.
-
- 16 -
(T. 2162).
Abundio Fernandez, Defendant’s father, testified that when
Defendant was in school he would not pay attention in class.
They
were “more or less” told that he had a learning disability.
(T.
2164). They sent him to a special school. (T. 2165). Abundio
was
arrested for drug trafficking when Defendant was growing up.
He
became involved in it because of financial problems. (T.
2165).
Abundio used cocaine in the past. He did not know whether
Defendant knew he used it. He later became aware that
Defendant
was using it also, which he allowed because he thought it would
be
better than using it on the street. (T. 2166). He and
Defendant’s
mother decided together to allow Defendant to use cocaine.
(T.
2167). They thought of telling him not to do the cocaine, but
were
afraid that if they did Defendant would do it on the streets.
(T.
2167). Abundio had seen Defendant crying since his
(Defendant’s)
arrest. (T. 2171).
On cross, Abundio stated that even when he was put in
special
classes, Defendant continually skipped school. (T. 2172). At
the
time of the crime, Defendant was not living at home. He was
living
with his girlfriend, Maritza. She was older than he, and had
children. (T. 2172). Defendant felt he was acting as an
adult.
(T. 2173). He was working. Defendant was not in contact with
his
-
- 17 -
parents at the time of the crime. Defendant was in jail when
the
father saw him crying. (T. 2173).
Mayling Fernandez, 17, Defendant’s sister, testified that
she
lived with her parents and was involved in a program for
recovering
addicts. (T. 2174). She was addicted to cocaine, but had not
used
any drugs since December 1992. (T. 2175). Mayling was born
in
Cuba; the family, including her parents, brother and great-
grandmother, came here when she was about three years old.
(T.
2175). The great-grandmother lived with them until she died
in
1989. She attended to Defendant closely. (T. 2176). Both
parents
worked. Defendant was 17 when the grandmother died. (T.
2177).
Defendant’s behavior changed after the grandmother died. (T.
2177). Defendant rebelled and stopped “communicating” with
their
parents, stopped showing emotion. Mayling and Defendant grew
apart
after the grandmother died. (T. 2178). There was very little
discipline in the house; Defendant was given a lot of
freedom.
However, they were never abused. Mayling was shocked when
her
father was arrested, because she did not know he was involved
in
drug trafficking. (T. 2181). Mayling saw her brother crying
when
he saw the news about the bank robbery. (T. 2183-84).
Maritza had a 15 or 16 year old daughter that Defendant
acted
as a father figure for. (T. 2186). Defendant would act
-
- 18 -
aggressively toward Mayling when they were growing up,
including,
on one occasion, holding her out of a window by her feet.
(T.
2186).
Defendant testified that his family came to the U.S. when he
was about six or seven. Growing up was rough because they were
not
a close family. (T. 2188). His grandmother was the only one
he
could communicate with, who understood him. (T. 2189). He
felt
very alone when she died. (T. 2189). As time went by he got
over
it. (T. 2190). In addition to cocaine, Defendant also smoked
marijuana. He started using marijuana first, when he was about
14.
He thought it was “cool” at the time. He parents knew, but
they
never told him to stop. (T. 2191). Defendant went to school
through the seventh grade. He always felt he had a hard time
learning. (T. 2193). Defendant could read some, but could
not
write. (T. 2194). Defendant was arrested for “joyriding”
apparently several times, when he was a juvenile. (T. 2198).
Defendant stated that he did not meet Gonzalez or Abreu until
the
day of the robbery. He had met San Martin a few days earlier.
He
had known Franqui for six to eight months. He claimed to be
afraid
of Franqui, “in a way,” because he had a reputation of being
violent and not caring what got in his way. (T. 2199).
Defendant
allegedly tried to back out of the robbery the morning of
the
crime. At that point he found out it was a bank robbery, and
did
-
- 19 -
not want to be involved in federal charges. (T. 2200). He
told
Franqui that, and Franqui threatened to shoot him. (T.
2203).
This was less than two minutes before the robbery. (T. 2203).
He
also threatened Defendant’s family. (T. 2204). Defendant was
not
armed. (T. 2204). Only Franqui and Gonzalez had weapons. (T.
2205). Afterwards, Franqui again threatened his family. (T.
2205). After Defendant was arrested he confessed and showed
the
police where the other defendants lived. (T. 2207). Defendant
was
allegedly remorseful. He wrote to his grade-school teacher
to
communicate those feelings. A copy was presented in court.
(T.
2213). The letter essentially was to tell other students not
to
make his mistakes and to stay in school and study hard. (T.
2213).
He wrote the letter before trial. Id. Defendant had had
problems
with sleeping since his arrest. He had nightmares about the
electric chair -- and would wake up crying and screaming.
(T.
2216).
Defendant claimed that he had never met with Cromer. (T.
2220). Defendant also denied ever telling Sanchez about the
robbery. (T. 2221). Defendant admitted stealing the two cars,
but
denied that he knew they were going to be used for the
robbery.
(T. 2226). Defendant admitted buying “some things for the
house”
with his share of the proceeds. (T. 2230).
-
- 20 -
Dr. Gary Schwartz, a forensic psychologist, met with
Defendant
on three occasions. (T. 2249). He obtained a family history
and
conducted standardized testing. (T. 2250). He reviewed
medical
records from Mercy, Jackson Memorial, and Baptist hospitals.
(T.
2250). He also reviewed Defendant’s records from the Dade
County
school system, and from a school in Georgia. (T. 2251).
Schwartz
administered the Ohio Test of Literacy first, because
certain
intelligence tests required certain reading levels to be
accurate.
(T. 2253). Defendant tested slightly below the fifth grade
level.
On the WAIS-R, defendant scored a full scale IQ of 75. (T.
2255).
A 75 IQ is in the borderline range. (T. 2256). Defendant did
not
have any significant neurological deficiencies, i.e. , he did
not
suffer from any brain damage. (T. 2258). Defendant appeared
to
have a learning disability, based on the school records and
corroborated by the WAIS and the literacy tests he was given.
(T.
2258). Defendant was left back in the third and sixth grades
due
to reading deficits. Defendant was also disruptive. Schwartz
attributed this to acting out after being teased because he
was
unable to keep up with the other students. The school
records
indicated that he was in an emotionally handicapped class
for
years. (T. 2259). Defendant’s medical records corroborated
the
suicide attempt. (T. 2260). Defendant told Schwartz that he
began
using cocaine at around 15. He said that his parents told him
not
to use drugs, but if he was going to, to use them at home.
(T.
-
- 21 -
2261). One hospital report diagnosed Defendant as bipolar.
(T.
2262). Schwartz felt that Defendant suffered from a
personality
disorder. (T. 2267). Also consistent were impulsive
behavior,
irritability, anxiousness, and nervousness. Suicide gestures
and
feelings of boredom would also be quite common. (T. 2268).
On cross Schwartz conceded that difficulty sleeping,
anxiousness, and depression would also be not unusual for
someone
facing either life imprisonment or the death penalty. (T.
2273).
Defendant’s suicide attempt with cough syrup appeared to have
been
more of an attention-getting device than a real attempt to
kill
himself. (T. 2274). It was pointed out that the school
records
indicated that Defendant had numerous absences, in one instance,
40
days in a row. The doctor conceded that this would have an
effect
on what Defendant learned. (T. 2275). Defendant did not
suffer
from any major mental illness. (T. 2278). Defendant also had
antisocial tendencies. (T. 2280).
The court informed the jury of codefendant Abreu’s life
sentence (T. 2292). After deliberation, the jury recommended
a
sentence of death by a vote of 7-5. (Fr. T. 3133).
On September 30, 1994 a sentencing hearing was held before
the
court. (Fr. T. 3113). Defendant testified and requested mercy
so
-
- 22 -
that he could help prevent other kids from going wrong. He
also
reiterated his claim of duress by Franqui. (Fr. T. 3135-36).
The State called Hialeah Detective Albert Nabut, who had
interviewed Defendant regarding the murder of Raul Lopez and
the
attempted murder of the Cabanases in Hialeah. (Fr. T. 3138).
Defendant initially denied any knowledge of the crime. (Fr.
T.
3139). Nabut spoke with Defendant again a few days later, and
at
that time he agreed to discuss the case. Defendant stated that
he
learned of the Cabanases through his father. (Fr. T. 3140).
A
friend of Defendant’s father’s, Tuia, had told him that the
Cabanases carried a lot of cash. (Fr. T. 3141). He also
learned
about their routine from Tuia. Defendant conveyed this
information
to Franqui, San Martin, and a third person. The four of them
went
to the shopping center where the Cabanases had their
check-cashing
business, and Defendant pointed out Danilo Cabanas and his
vehicle,
and that they carried a lot of cash to and from the concern.
(Fr.
T. 3141). Defendant said that he told Franqui that “it would
be
okay” if they wanted to give Defendant some of the money if
the
robbery was successful. (Fr. T. 3142).
On October 11, 1994 the trial court pronounced sentence.
(Fr.
T. 3152-3215). The trial court concluded that the State had
established three factors in aggravation: (1) Defendant’s
multiple
prior violent felonies; (2) that the murder was committed
during
-
- 23 -
the course of a robbery, which the court merged with the
pecuniary
gain aggravator; (3) that the murder victim was a law
enforcement
officer in the course of his official duties, merged with the
avoid
arrest aggravator. The court gave the second circumstance
great
weight. (R. 542-43).
The trial court found that no statutory mitigating
circumstances existed. (R. 544-48). Of several nonstatutory
mitigating circumstances proffered by the defense, the court
found
that Defendant had proven two: (1) his family history, and (2)
his
cooperation with the authorities. The court accorded these
mitigators little weight. (R. 549-51) The court specifically
conducted an “Enmund-Tyson analysis” and concluded that
Defendant
was a major participant in the crime, intended lethal force to
be
used, and had exhibited a reckless indifference to human life.
(R.
552-54). In conclusion, the court found that the aggravators
outweighed the mitigators and sentenced Defendant to death.
(R.
555-56).
This appeal followed.
-
- 24 -
SUMMARY OF THE ARGUMENT
1. The prosecutor’s brief reference in opening statement to
the song the murder victim was singing and to the defendant as
a
robber and murderer were not improper where both statements
were
supported by the evidence adduced, without objection, at trial.
As
such the trial court properly denied Defendant’s motion for
mistrial. Moreover, any error would be harmless beyond a
reasonable doubt in view of the overwhelming evidence of
Defendant’s guilt.
2. The trial court did not abuse its discretion in refusing
a defense continuance of the penalty phase where the defense
team
had had 2½ years to prepare before trial, and three months
between
the verdict and the penalty phase, particularly where the
defense
was given additional money and time to obtain and present
additional evidence to the trial court and never did.
3. The trial court properly sentenced Defendant to death.
(i) The trial court properly rejected Defendant’s age of
19 as mitigating where there was no evidence that Defendant
was
particularly immature.
-
- 25 -
(ii) The trial court properly rejected Defendant’s claim
that he participated in the robbery and murder under extreme
duress
where the evidence, including defendant’s own statements to
others,
contradicted Defendant’s testimony, which the trial court found
to
be disingenuous.
(iii) The trial court properly rejected Defendant’s
contention that he had no significant history of criminal
activity
in view of his juvenile history of “joyriding,” cocaine
trafficking, and cocaine use.
(iv)(a) The trial court acted within its discretion in
giving Defendant’s family history little weight as a
nonstatutory
mitigator.
(iv)(b) The trial court properly rejected Defendant’s
proffered mitigation concerning his psychological history where
it
was “unimpressed” with the expert testimony, there was
nothing
tying any problems to the crime, and in any event Defendant had
no
major mental illness or organicity but had sociopathic
tendencies.
(iv)(c) Defendant’s claims of remorse were belied by
his failure to accept any responsibility for the crime, and
his
clear distress at his own predicament, not his victim’s. The
trial
court properly rejected the claim.
-
- 26 -
(iv)(d) The trial court properly gave little weight to
Defendant’s alleged cooperation with the authorities, when
the
“cooperation” came only after he had been connected to the
crime,
and was largely an attempt at self-exculpation.
(iv)(e) The trial court properly rejected Defendant’s
claims as to his potential for rehabilitation for the same
reasons
it rejected his claim of remorse, as well as on the basis of
his
history of repeated criminal acts.
(iv)(f) The trial court properly rejected as
mitigating, the alternative sentence of life without parole.
Assuming such a factor could be considered “mitigation,” the
trial
court properly concluded that under the facts of the case, it
did
not outweigh the aggravation established.
(iv)(g) The trial court properly rejected Defendant’s
claim that his codefendant Abreu’s life sentence should be
considered in mitigation. Abreu pled guilty and agreed to
testify
in both this case and the Hialeah case, and additionally was
substantially less culpable than Defendant, who initiated
the
crime, stole the getaway vehicles, bought the guns, and was
present
at the scene, while Abreu waited several blocks away in
Franqui’s
car.
-
- 27 -
(v) Finally, in view of the three strong factors
established in aggravation, which Defendant has not challenged,
any
error claimed with regard to the mitigators would be
harmless
beyond a reasonable doubt.
(vi)(a) The trial court properly determined that the
death penalty was appropriate, despite Defendant’s role as a
nontriggerman, where it concluded that Defendant intended
lethal
force be used, that he was a major participant, and that his
state
of mind was one of reckless indifference for human life.
(vi)(b) Defendant’s sentence is proportional when
compared to other death-sentenced defendants.
Defendant’s convictions and sentences should be affirmed.
-
- 28 -
ARGUMENT
I.DEFENDANT WAS NOT ENTITLED TO A MISTRIAL BASEDUPON THE
PROSECUTOR’S OPENING STATEMENT.
Defendant’s first claim is that the trial court erred in
failing to grant a mistrial after the prosecutor referred to a
song
the murder victim was singing before he was shot and referred
to
the Defendant as a robber and murder. The prosecutor was
merely
stating what she expected the evidence to show, and as such
the
trial court did not abuse its discretion when it overruled
Defendant’s objections and declined to declare a mistrial.
The control of opening comments is within trial court’s
discretion. Occhicone v. State , 570 So. 2d 902, 904 (Fla.
1990).
Where the prosecutor does no more than make a good faith attempt
to
outline what she expects the evidence to show, it is no abuse
of
discretion to overrule defense objections to the State’s
opening
remarks. Id. Here, the trial court specifically determined
that
the State’s remarks were proper “presuming that in good faith
those
matters which Mrs. Levine spoke of are going to be presented
in
evidence.” (T. 1100). The matters referred to were in fact
presented. LaSonya Hadley testified, without defense
objection,
-
6 As noted there was no defense objection to thistestimony.
However, even if there had been, brief humanizingcomments are not
improper. Stein v. State , 632 So. 2d 1361, 1367(Fla. 1994).
7 Defendant also complains, (B. 15), that the trial courtfailed
to give a curative instruction. However, Defendant neverrequested
one.
- 29 -
about the song which Bauer was singing. 6 (T. 1157).
Furthermore,
the evidence presented unquestionably established that
Defendant
was indeed a murderer and robber under the laws of this
state.
Under such circumstances the trial court properly declined to
grant
a mistrial. 7 Occhicone ; Hartley v. State , 21 Fla. L. Weekly
S391,
S393 (Fla. Sept. 19, 1996)(prosecutor’s comment that
witnesses
would not testify because defendant was the “neighborhood
tough
guy” proper where supported by the evidence subsequently
introduced).
Even assuming, arguendo , that the comments were improper,
they
were brief, comprising two small moments out of a week-long
trial,
and not such as to vitiate the entire trial. Given the
overwhelming evidence, including Defendant’s confessions, to
the
police and to others, as well as eyewitness, fingerprint,
and
ballistic evidence tying Defendant to this crime, it cannot
reasonably be argued that these brief comments could have
affected
the jury’s verdict. King v. State , 623 So. 2d 486, 488
(Fla.
1993)(conviction will not be overturned unless prosecutor’s
comment
-
- 30 -
is so prejudicial that it vitiates the entire trial; any error
is
harmless if there is no reasonable possibility that the
comments
affected the jury’s verdict); Watson v. State , 651 So. 2d
1159,
1163 (Fla.1994)(no error in denying mistrial after prosecutor
made
repeated references to the effect of finding the victim’s body
on
her widower, in view of substantial evidence); Dailey v. State
,
594 So. 2d 254, 256 (Fla. 1991)(improper reference to
defendant’s
resisting extradition, where comment was extremely brief,
was
harmless); Williams v. State , 492 So. 2d 1501, 1503 (Fla.
1986)(comment in opening that defendant was caught in a
high-crime
area not comprise such substantial prejudice as to vitiate
the
entire trial). Defendant’s convictions should be affirmed.
-
- 31 -
II.
THE TRIAL COURT PROPERLY DENIED DEFENDANT’SMOTION, AFTER 75 DAYS
OF PREPARATION TIME HADALREADY BEEN ALLOWED, FOR AN
ADDITIONALCONTINUANCE.
Defendant’s second claim is that the trial court erred in
failing to further continue the penalty phase after allowing
Defendant’s counsel 75 days in which to prepare. Defendant
has
failed to show that the trial court abused its discretion.
At the status hearing held on September 19, 1994, four days
before the sentencing phase before the jury was to commence,
defense counsel moved for a continuance for thirty days in which
to
conduct further investigation. (T. 2103). The trial court
observed that when counsel was appointed, the court
specifically
advised him of the date of the sentencing hearing, and informed
him
that he should not accept appointment if he could not be
ready
within the 75 days available. (T. 2107). The court further
noted
that there would be no time available between September and the
end
of the year in which to conduct the hearing. The court
further
explained that it was not “in a rush to judgment,” but was
concerned the jury might be contaminated. (2111). The judge
observed that the jury had already been at large for three
months
since the verdict. Moreover, although there had been little
publicity, the court was very concerned that when the “B” jury
came
-
8 Notably, thirty days was the time period requested in
themotion for continuance. (R. 479).
- 32 -
out with its sentencing recommendations it would be very
difficult
to ensure that the “A” jury remained unaware of its decision.
(T.
2108-09). The court thus denied the continuance.
The court did, however, specifically reaffirm that its
primary
concern was the jury, and that it would be more than amenable
to
delaying the presentation before the court if counsel needed
further time for investigation. (T. 2111). In that regard,
defense counsel requested, and was granted an additional $1000
in
investigative costs. Id. Tellingly, counsel never thereafter
moved to continue the presentation to the court; nor did
counsel
present any further witnesses or evidence at that hearing,
despite
being given the opportunity to do so. It can only be
concluded
that no more mitigation evidence, witnesses, or leads were
uncovered in the intervening month. 8
Thus, it cannot be said that Defendant was prejudiced by the
trial court’s refusal to grant the continuance. Further,
counsel
made a substantial presentation before the jury. Defendant had
the
benefit of expert testimony. Dr. Gary Schwartz testified that
he
had reviewed Defendant’s records from the Dade County and
Georgia
school systems, from three hospitals in Miami, which had
been
-
9 In his affidavit presented with the motion forcontinuance,
Defendant’s investigator stated that he had conductedinvestigations
in Detroit and Georgia as well as in Florida. Hefurther obtained
all of Defendant’s medical and other records andinterviewed
numerous potential witnesses. (R. 487).
- 33 -
supplied to him by defense counsel. He met with Defendant’s
family
and conducted standardized testing over the course of three
separate interviews. (T. 2249-51). Defendant’s parents and
sister
also testified extensively regarding Defendant’s upbringing
and
family life. Finally, Defendant failed, after being given
additional time and money to investigate, to identify any
witness
he would have called or any evidence he would have presented had
he
had more time to prepare. 9
The general rule is that the granting or denying of a motion
to continue the penalty phase is within the discretion of the
trial
court. Valdes v. State , 626 So. 2d 1316, 1323 (Fla. 1993);
Wike
v. State , 596 So. 2d 1020, 1025 (Fla. 1992). Ordinarily the
reviewing court is reluctant to invade the purview of the
trial
court. Wike . Defendant relies on Wike in support of his
claim.
However Valdes is more apposite here. In Wike the court noted
that
the abuse lay in failing to grant a few days continuance to
secure
the presence of specifically identified witnesses, who would
be
available at a specific time, but were not available at the
scheduled time of the hearing, and who had identifiable evidence
to
impart. Moreover the penalty phase hearing had been set to
-
- 34 -
commence the morning following the rendition of the guilty
verdicts. In Valdes , although certain witnesses were
identified,
the court noted that counsel had had ten months to prepare
before
the trial and “a full week” to prepare between the guilt-
and
penalty-phase proceedings. As such the continuance was
properly
denied.
Here, as in Valdes , defense counsel had ample time to
prepare.
Although Mr. Kassier was not appointed until July of 1994, he
was
not, as could be inferred from Defendant’s brief, (B. 16),
appointed to replace trial counsel, but to supplement him.
Mr.
Guralnick had been representing Defendant since February 20,
1992,
for more than two and one half years before the penalty phase.
The
record reflects that Mr. Guralnick continued to represent
Defendant
and was present throughout the post-verdict proceedings.
Moreover,
the defense was given more than three months in which to
prepare
after the appointment of Mr. Kassier. Finally, as noted,
ample
evidence was presented, the defense was given more money, as
well
as the offer of additional time, if needed, to secure
mitigating
evidence to present to the trial court. No additional evidence
was
presented and no additional time was requested. Plainly the
trial
court was correct in concluding that the defense was merely on
a
fishing expedition. It is equally plain that the fish did
not
bite. In view of the foregoing it cannot be said that the
trial
-
- 35 -
court abused its discretion. Valdes . Defendant’s sentence
should
be affirmed.
-
- 36 -
III.THE TRIAL COURT PROPERLY SENTENCED DEFENDANTTO DEATH.
Defendant avers that the trial court erred in either
rejecting
proffered mitigation or in failing to give the mitigation it
found
sufficient weight. He further asserts that the penalty is
disproportionate to the crime. A review of the proceedings,
however, shows that the trial court properly rejected
certain
proposed mitigation and adequately weighed the remainder.
The
trial court ultimately concluded that the mitigation proven
was
outweighed by the aggravation, and that Defendant was
sufficiently
culpable, and followed the jury’s recommendation that Defendant
be
sentenced to death. The court’s conclusions were proper.
A trial court is obligated to find, as mitigating
circumstances, only those proposed factors which are mitigating
in
nature and have been reasonably established by the greater
weight
of the evidence. Campbell v. State , 571 So. 2d 415, 419
(Fla.
1990). Furthermore:
[W]hen a reasonable quantum of competent,uncontroverted evidence
of a mitigatingcircumstance is presented, the trial courtmust find
that the mitigating circumstance hasbeen proved. A trial court may
reject adefendant’s claim that a mitigatingcircumstance has been
proved, however,provided that the record contains
“competentsubstantial evidence to support the trialcourt’s
rejection of these mitigatingcircumstances.”
-
- 37 -
Nibert v. State , 574 So. 2d 1059, 1062 (Fla. 1992). See also
,
Walls v. State , 641 So. 2d 381, 390-91 (Fla. 1994)(“certain
kinds
of opinion testimony ... are not necessarily binding even if
uncontroverted. Opinion testimony gains its greatest force to
the
degree it is supported by the facts at hand, and its weight
diminishes to the degree such support is lacking. A debatable
link
between fact and opinion relevant to a mitigating factor
usually
means, at most, that a question exists for judge and jury to
resolve”). Finally, once it has been established, the weight to
be
ascribed to a particular mitigating factor is a matter for the
jury
and judge to determine. Jones v. State , 648 So. 2d 669, 680
(Fla.
1994); Slawson v. State , 619 So. 2d 255, 260 (Fla. 1993).
With
the foregoing principles in mind, the State will address
Defendant’s contentions.
1. Defendant’s Age
Defendant first asserts that the trial court erred in
failing
to find that Defendant’s age of 19 at the time of the crime
was
mitigating. However, the finding of age as a mitigating factor
is
a decision that rests within the discretion of the trial court,
and
numerous decisions have upheld the refusal to treat ages of 18
or
more as mitigating. See e.g. , Merck v. State , 664 So. 2d 939,
942
(Fla. 1995)(“the trial court may find or decline to find age as
a
mitigating factor in respect to a defendant who is 19. In
the
-
10 Defendant’s reliance on Amazon v. State , 487 So. 2d 8(Fla.
1986), is misplaced. That case involved the analysis of thetrial
court’s override of the jury’s life recommendation. Thatunder the
circumstances of that case the jury could have consideredthe
defendant’s age as mitigating does not necessarily mean thatunder
the circumstances here the judge had to find Defendant’s ageto be
mitigating.
- 38 -
trial court’s sentencing order in this case, the trial court
considered but rejected defendant’s age as being a
mitigating
factor. We affirm.”); Cooper v. State , 492 So. 2d 1059,
1063
(Fla. 1986) (trial judge acted within discretion in rejecting
age
of 18 as mitigating factor); Garcia v. State , 492 So. 2d 360
(Fla.
1986) (“The fact that a murderer is twenty years of age,
without
more, is not significant, and the trial court did not err in
not
finding it as mitigating”); Kokal v. State , 492 So. 2d 1317,
1319
(Fla. 1986) (no abuse of discretion in not finding age of 20
as
mitigating);
Defendant avers that his expert’s testimony supports the
finding of the age mitigator. 10 (B. 20). However, Dr.
Schwartz
never offered any testimony as to Defendant’s “emotional
age.”
Schwartz found only that Defendant had relatively low
intelligence
and suffered from an unspecified personality disorder. The
doctor
did not feel that Defendant suffered from any major mental
illness
or organicity. On the other hand, the doctor did note that
-
11 The doctor did note that Defendant had poor judgment,
butthose with good judgment seldom get themselves convicted of
firstdegree murder. In any event, that conclusion was in no way
tiedinto Defendant’s age, emotional or otherwise.
- 39 -
Defendant had antisocial tendencies. 11 The lay testimony
revealed
that Defendant had left home and school at the age of 16
(three
years before the crime) in order to get married and work.
Since
that time he had gotten divorced and subsequently, and up until
his
arrest, cohabitated with another woman and acted as a
“father
figure” to her children. There simply was no record evidence
that
Defendant was particularly immature, such that his age could
be
considered of such significance as to compel the trial court
to
have found it as a mitigator.
2. Duress
Defendant next faults the trial court for rejecting his
claim
that he acted under extreme duress at the time of the crime.
This
claim was predicated on Defendant’s trial testimony and his
exculpatory statement given at the time of his arrest, to
the
effect that he did not realize they were going to rob the
bank
until the morning of the crime, and that he participated in
the
crime only because codefendant Franqui had threatened his life
and
the lives of his family. However, this evidence was directly
contradicted by the testimony of Cromer, who testified that it
was
Defendant who made the connection between the plan to rob the
bank
-
- 40 -
and the other defendants. It was further contradicted by the
testimony of Sanchez, to whom Defendant bragged about stealing
the
robbery plan from Cromer, stealing the cars for the heist,
buying
the guns, and buying his girlfriend a new bedroom set with
the
proceeds. Also generally contradictory of the claim of duress
and
surprise was Defendant’s self-confessed earlier role as the
“finder” of the Hialeah “job,” which he referred to Franqui and
San
Martin, in hopes of sharing the proceeds.
The trial court rejected Defendant’s testimony and
“confession” as unworthy of belief, finding him “insincere,”
and
concluded that the evidence did not support a finding that
Defendant acted under duress. (R. 546-48). No error
occurred.
Sireci v. State , 587 So. 2d 450, 453 (Fla. 1991)(“The decision
as
to whether a particular mitigating circumstance is established
lies
with the judge. Reversal is not warranted simply because an
appellant draws a different conclusion. ... Further, it is
the
trial court’s duty to resolve conflicts in the evidence, and
that
determination should be final if supported by competent,
substantial evidence;” no error in rejecting duress); Maqueira
v.
State , 588 So. 2d 221, 224 (Fla. 1991)(no error in
rejecting
statutory mitigator of extreme duress despite defendant’s
self-
serving “confession” that his codefendant held a gun to his
head
before commission of the crime).
-
12 Defendant cites Fitzpatrick v. State , 437 So. 2d 1072(Fla.
1983)(prior attempted armed robbery and bombing of school);Quince
v. State , 414 So. 2d 185 (Fla. 1982)(prior armed robbery
andburglary); and Booker v. State , 397 So. 2d 910 (Fla.
1981)(priorviolent juvenile, military, and adult convictions).
- 41 -
3. No Significant Criminal History
Defendant asserts that the trial court should have found the
statutory mitigating circumstance of no significant prior
criminal
history. As he did in the trial court, Defendant makes the
flawed
argument that because there exist cases in which this court
has
upheld the rejection of this mitigator where the defendant
had
committed extremely serious crimes in the past, the trial court
may
not reject the mitigator where the defendant had a history
of
purportedly less serious criminal activity. 12 The trial
court
properly rejected this argument, however, citing Defendant’s
history of juvenile “joy riding,” cocaine trafficking in excess
of
400 grams, which, as the trial court noted, is a
first-degree
felony, and cocaine use. (R. 545). No error occurred. Slawson
v.
State , 619 So. 2d 255, 260 (Fla. 1993)(“it is clear that
the
mitigating factor of no significant criminal activity may be
rebutted by record evidence of criminal activity, including
drug
activity”); Walton v. State , 547 So.2d 622, 625 (Fla.
1989)(same);
Washington v. State , 362 So.2d 658, 666 (Fla.1978)(same).
4. Nonstatutory Mitigation
Defendant also raises numerous claims as to the trial
court’s
-
- 42 -
treatment of his proposed nonstatutory mitigation. The trial
court
rejected his contentions that his psychological and
educational
history, his alleged remorse, the potential of imprisonment for
the
rest of his life, his potential for rehabilitation, and the
life
sentence of his codefendant Abreu established mitigating
circumstances. The court found, but gave little weight to
the
mitigating factors of Defendant’s family history and his
cooperation with the authorities. The trial court acted well
within its discretion.
(a) Family History
Defendant faults the trial court for failing to “adequately
consider” this mitigating circumstance. (B. 24). However,
the
trial court gave full consideration to Defendant’s family
history,
finding it to be mitigating. (R. 549). The court cogently
noted
however, that although his parents may have misguidedly
condoned
his drug use, they never advocated violent robbery. Id.
Further,
contrary to Defendant’s characterization of the evidence, he
was
not without moral guidance in his youth. There was no
evidence
that Defendant was ever aware of his parents’ own drug use.
The
evidence regarding his parents’ sale of drugs did not indicate
that
they were “professionals.” Rather the testimony was
essentially
that the father, during a period of financial difficulty, agreed
to
-
13 The State does not condone Defendant’s parents’
behavior.However, they were not, as his argument might suggest,
major mobfigures.
- 43 -
act as a “mule” on one occasion, and got caught. 13 The parents
only
allowed Defendant to use drugs in the home in fear that if they
did
not he would use them on the streets. Moreover, his mother
testified that although she felt she should have been stricter,
she
was not, because, from the age of nine, Defendant threatened
to
turn her in to HRS if she disciplined him, and she was afraid
of
losing him. Defendant was never physically or mentally abused,
and
was raised by working parents who were still married.
Finally,
Defendant’s great-grandmother was a positive and loving
influence
on him while he was growing up.
In view of the foregoing the trial court acted wholly within
its discretion in giving these factors little weight. Johnson
v.
State , 660 So. 2d 637, 647 (Fla. 1995)(“Once the [aggravating
and
mitigating] factors are established, assigning their weight
relative to one another is a question entirely within the
discretion of the finder of fact”). See also Lara v. State ,
464
So. 2d 1173, 1180 (Fla. 1985)(“the trial court could
properly
conclude the appellant’s actions in committing this murder were
not
significantly influenced by his childhood experience so as
to
justify its use as a mitigating circumstance”); Kight v. State
,
512 So. 2d 922, 933 (Fla.1987)(same); Valle v. State , 581 So.
2d
-
- 44 -
40, 48-49 (Fla. 1991)(trial court properly weighed and
rejected
evidence of dysfunctional family and abusive childhood as
mitigating factors).
(b) Psychological/Educational History
The trial court found that Defendant’s “psychological and
educational history” did not mitigate Defendant’s conduct in
light
of the circumstances of the case. (R. 549-50). The court was
“unimpressed” by Defendant’s expert’s testimony. Id.
Although
Defendant had relatively low intelligence and was unable to
write
(he could read, but not well), Dr. Schwartz’s examination failed
to
reveal any major mental illness or organicity. On the contrary
the
testing showed that Defendant merely had antisocial
tendencies.
Moreover, at no point were any of Defendant’s alleged
difficulties
ever in any way related to Defendant’s conduct on January 3,
1992;
there was absolutely no evidence whatsoever of disturbance at
the
time of the crime, that Defendant was unable to distinguish
right
from wrong, or that he was unable to conform his conduct to
the
requirements of the law.
As for Defendant’s educational history, the record showed
that
although he suffered from a learning disability, Defendant
spurned
efforts to assist him, skipping school on a regular basis, at
one
point for forty days in a row, even after he had been placed
in
-
- 45 -
special class to help him learn.
In view of the foregoing, the trial court properly concluded
that Defendant’s history did not establish a mitigating
circumstance. Rogers v. State , 511 So. 2d 526, 535 (Fla.
1987),
rev’d on other grounds , 630 So. 2d 513 (Fla. 1993)(facts
regarding
defendant’s intelligence standing alone not mitigating
unless
related to his moral culpability); Mills v. State , 462 So.
2d
1075, 1083 (Fla. 1985)(“the trial court did not err in failing
to
find any nonstatutory mitigating circumstances in the testimony
of
Dr. Akbar concerning Mills’ low intelligence ... The trial
court
need not consider low intelligence alone as a mitigating
circumstance”); Carter v. State , 576 So. 2d 1291, 1292-93
(Fla.
1989)(trial court properly rejected alleged mental mitigation
where
expert testimony concluded there could be mental deficiency,
but
also that defendant could be sociopathic); Taylor v. State ,
630
So. 2d 1038, 1043 (Fla. 1993)(trial court properly gave
limited
evidence of mental retardation “slight” weight where there was
also
evidence that the defendant was a “functioning adult living
away
from the parental home”).
(c) Remorse
Defendant avers that the trial court erred in failing to
credit the “substantial amount of evidence of remorse.” (B.
25).
-
14 Defendant conveniently copied the letter before mailingit.
The better to preserve it for admissibility as evidence? Inany
event, the letter shows less concern for what Defendant didthan for
where his actions got him:
Don’t forget that their [sic] are no freinds[sic] in this world.
Look where my so calledfreind [sic] got me ... I’ll be out
soon.
(R. 486).
- 46 -
There was indeed much testimony as to Defendant’s crying, lack
of
sleep, and nightmares. Defendant also claimed to be remorseful
and
presented a letter written to a former teacher counseling
other
children not to do as he had done. However, all this evidence
was
just as consistent with fear as remorse, as the trial court
concluded. (R. 550).
Indeed, the evidence was more consistent with fear.
Defendant’s nightmares were not about the bloody horror of
Steven
Bauer’s death; they were about the electric chair. Likewise,
his
expressions of remorse such as the letter, 14 reflect less
sorrow at
the death and suffering his actions caused, than self-pity for
his
present predicament. Furthermore his purported remorse is
wholly
inconsistent with his repeated denials of responsibility. Even
at
the sentencing hearing before the court, Defendant maintained
that
he was not responsible for the crime, and was only present
because
Franqui forced him. Finally, after sentence was pronounced, as
if
to punctuate the wisdom of the court’s conclusions,
Defendant
-
- 47 -
demonstrated just how remorseful he was:
DEFENDANT FERNANDEZ: It’ll be back onappeal, don’t worry about
it. I am notworried. It was a waste of time.
(Fr. T. 3215). No error occurred. Nibert .
(d) Cooperation with the Authorities
Defendant next argues that the trial court should have found
that his cooperation with the authorities “should have been
considered in mitigation.” (B. 25). The trial court did
consider
this factor, but “in the light of all the facts” gave it
little
weight. (R. 551). Those facts include Defendant’s seeking of
spiritual help, not to ease his conscience, or to seek
forgiveness,
or to do penance, but to obtain protection from justice.
Furthermore Defendant’s “cooperation” consisted of giving a
“confession” which, as the trial court found, (R. 546-47), was
a
disingenuous attempt to foist all the blame off on his
codefendants. Finally, Defendant’s “cooperation” did not
begin
until after he had been turned in by Prado and Hernandez. As
noted above, the weight to be given established mitigating
factors
is wholly within the discretion of the trier of fact. The
trial
court was well within its discretion in giving Defendant’s
cooperation little weight. See Washington v. State , 362 So.
2d
658 (Fla. 1978)(cooperation properly rejected as mitigation
where
defendant not begin to cooperate until after he had been
identified
-
- 48 -
as a participant in the crime).
(e) Potential for Rehabilitation
Defendant also claims that the trial court should have
considered his potential for rehabilitation as mitigating. He
cites
his letter to the former teacher as evidence of this
potential.
(B. 26). However, as with his claim of remorse, the trial
court
rejected the letter as evidence of potential for
rehabilitation,
finding that the evidence was just as consistent with the
manufacturing of mitigation. (R. 550). The court further
noted
that both remorse and rehabilitation would be reflected in
an
acceptance of responsibility, which, as noted supra , Defendant
has
failed to do. Moreover, the evidence counsels against
Defendant’s
potential for rehabilitation. As early as age nine, Defendant
has
been manipulating people to avoid the consequences of his
actions,
beginning with threats to turn his mother into HRS in order
to
avoid discipline. In the instant case, Defendant has
maintained,
from the time he was arrested until the post-recommendation
hearing
before the court, in the face of overwhelming evidence to
the
contrary, that he was essentially not at fault. Defendant’s
refusal to accept responsibility for his acts hardly bespeaks
a
contrite and redeemable soul. Finally, Defendant’s repeated
criminal activity since he was a young teenager refutes any
claim
to potential for rehabilitation. Mills v. State , 462 So. 2d
1075,
-
- 49 -
1082 (Fla. 1985). The trial court did not err in refusing to
find
this factor in mitigation.
(f) Alternative Sentence
Defendant argues that the trial court should have found that
Defendant’s parole-ineligibility (because the murder victim was
a
police officer) was a mitigating circumstance. Defendant relies
on
Jones v. State , 569 So. 2d 1234 (Fla. 1990). Defendant’s
reliance
is misplaced.
Jones has no bearing on the issue before the court. That
case
merely held that counsel was permitted to argue to the jury
the
fact that the defendant would be removed from society for a
minimum
of 50 years if sentenced to life for the two murders he
committed.
Id. at 1239-40. That is not the issue presented, however.
The
issue here is whether the fact that Defendant would not be
eligible
for parole establishes a mitigating circumstance that the
trial
court should have found.
Parole-ineligibility is not a mitigating circumstance;
rather
it is an integral part of the weighing process the trial
court
undertakes. Mitigating circumstances are any aspect of the
defendant’s character and record or circumstances of the
offense
that lessen the defendant’s culpability and offer a basis for
a
-
- 50 -
sentence less than death. Rogers , 511 So. 2d at 535; Campbell
,
571 So. 2d at 419; Nixon v. State , 572 So. 2d 1336 (Fla.
1990).
While trial courts consider the sentencing alternatives
before
them, such consideration is intrinsic to their weighing
process;
whenever a trial court imposes the death penalty, it has
necessarily rejected, as insufficient, the alternative
penalty,
whatever its nature.
Although the trial court below nominally addressed the issue
in the format Defendant presented, i.e. , as a mitigating
circumstance, the court’s analysis highlights parolability’s
true
role as an integral part of the overall weighing process:
The defendant suggests that life imprisonmentwithout possibility
of parole is enough. Thiscourt does not belittle the severity of a
lifesentence without possibility of parole[.][H]owever the law
requires a cold anddispassionate analysis of the aggravating
andmitigating circumstances and a fair andintellectually honest
assessment of what theappropriate sentence should be. Given
thefacts of the instant case the court does notfeel that the
alternative sentence to thedeath penalty serves as a
mitigatingcircumstance. The court is therefore NOTreasonably
convinced that the existence of analternative sentence to death
warrants thefinding of a non-statutory circumstance.
(R. 552)(emphasis added). The court clearly concluded that in
the
light of the facts of the case and the other factors in
aggravation
and mitigation, Defendant’s parole eligibility did not alter
the
balance in favor of life.
-
- 51 -
Furthermore, even assuming that the alternative sentence
could
be a mitigating factor under some circumstances does not compel
the
conclusion that the absence of the availability of parole is
proper
mitigation in this case. At the time of Defendant’s crime,
first
degree murder was punishable by death or life without parole for
25
years. As an additional sanction, the legislature mandated
no
parole for those sentenced to life imprisonment if the victim
were
a police officer. By Defendant’s logic, the trial court
should
have considered as mitigation the fact that the legislature
considered his crime as one requiring greater punishment .
The
absurdity is apparent.
Finally, even if, arguendo , the trial court should have
found
Defendant’s parole-ineligibility as a mitigating circumstance,
any
error would be harmless beyond a reasonable doubt. As noted
above,
the trial court clearly considered the fact that Defendant
would
never be released, and was unpersuaded that this formed a basis
for
not sentencing Defendant to death. Under such circumstances,
this
court has repeatedly concluded that the trial court’s
consideration
of the proffered mitigation was adequate. See Barwick v. State
,
660 So. 2d 685, 696 (Fla. 1995); Lowe v. State , 650 So. 2d
969,
977 (Fla. 1994); Thompson v. State , 648 So. 2d 692, 697
(Fla.
1994); Jones v. State , 648 So. 2d 669, 679 (Fla. 1994); Green
v.
State , 641 So. 2d 391, 396 (Fla. 1994); Pettit v. State ,
591
-
- 52 -
So. 2d 618, 620 (Fla. 1992); Krawczuk v. State , 634 So. 2d
1070,
1073 (Fla. 1994).
(g) Abreu’s Life Sentence
Defendant’s claim regarding the sentence of codefendant
Abreu
is also without merit. The trial court found in its
sentencing
order that although neither Defendant nor Abreu actually
shot
Officer Bauer, Abreu’s role was substantially less than
Defendant’s. (R. 551). While Defendant was actually at the
scene
of the robbery and murder, Abreu was parked several blocks away
in
the getaway vehicle. Further, Defendant was the person who
brought
together the “job” and his codefendants, who obtained the
murder
weapons, and who stole the Caprices. Finally, Abreu pled
guilty
and agreed to be a witness for the State in both this and
the
Hialeah cases, in exchange for the life sentences he received
in
both cases. The decision to prosecute or not, or to grant
immunity
is wholly within the discretion of the State Attorney. Her
decisions in such matters are questions of executive
prerogative
not subject to judicial scrutiny. State v. Bloom , 497 So. 2d 2,
3
(Fla. 1986). Further, prosecutorial discretion in plea
bargaining
with accomplices is not unconstitutionally impermissible and
does
not violate the principle of proportionality. Garcia v. State ,
492
So.2d 360, 368 (Fla. 1986).
-
- 53 -
Under the circumstances like the foregoing, this court has
repeatedly approved the imposition of the death penalty where
a
codefendant received life. Cardona v. State , 641 So. 2d 361,
365
(Fla. 1994)(challenge to proportionality of death sentence in
face
of codefendant’s life sentence rejected where defendant more
culpable); Steinhorst v. Singletary , 638 So. 2d 33, 35
(Fla.
1994)(same); Hannon v. State , 638 So. 2d 39, 44 (Fla.
1994)(same);
Colina v. State , 634 So. 2d 1077, 1082 (Fla. 1994)(same);
Coleman
v. State , 610 So. 2d 283, 1287 (Fla. 1992)(same); Robinson
v.
State , 610 So. 2d 1288, 1292 (Fla. 1992)(same); Downs v. State
,
572 So. 2d 895, 901 (Fla. 1990)(same); Williamson v. State ,
511
So. 2d 289, 293 (Fla. 1987)(same); Troedel v. State , 462 So.
2d
392, 397 (Fla. 1984)(same); Tafero v. State , 403 So. 2d 355,
362
(Fla. 1981)(same); Jackson v. State , 366 So. 2d 752, 757
(Fla.
1978)(same). It follows that the trial court was well within
its
discretion in rejecting Abreu’s sentence as a factor in
mitigation.
5. Harmless Error
Finally, even assuming, arguendo , that any of Defendant’s
claims regarding the factors in mitigation had merit, any
error
would be harmless beyond a reasonable doubt. The trial court
found
three strong aggravating factors: (1) prior convictions for
felonies involving violence; (2) murder committed during the
course
of a robbery, merged with the motive of pecuniary gain, to which
it
-
- 54 -
gave great weight; and (3) murder of a law enforcement
officer,
merged with witness elimination. (R. 542-44). Defendant has
not
challenged these findings. The court also found no statutory
mitigating circumstances, and minimal nonstatutory mitigation,
to
which the court gave little weight: Defendant’s family history
and
cooperation with the authorities. (R. 544-52). Finally, the
court
concluded that the aggravation “far outweigh[ed]” the
mitigation.
(R. 555). Wickham v. State , 593 So. 2d 191 (Fla. 1991)(in light
of
very strong case of aggravation any error in weighing of
mitigators
was harmless beyond a reasonable doubt).
6. Proportionality
As his final contention, Defendant claims that his sentence
is
disproportionate. The term “proportionality,” as used in
death-penalty jurisprudence, refers to two distinct
concepts.
Pulley v. Harris , 465 U.S. 37, 43 (1984). The first, as the
meaning is understood in traditional Eighth Amendment analysis,
is
concerned with whether the punishment is commensurate with
the
crime. Id. ; Enmund v. Florida , 458 U.S. 782, 787 (1982).
The
second type of “proportionality” addresses whether the sentence
is
disproportionate to the punishment imposed on others convicted
of
the same crime. Pulley , 465 U.S. at 43. Defendant claims that
his
sentence is inappropriate in the former sense. The trial court,
in
a lengthy analysis, reviewed the law regarding the application
of
-
15 The issue of codefendant Abreu’s life sentence hasalready
been addressed, supra , at Point III(4)(g).
- 55 -
the death penalty to “non-shooters” and correctly concluded
that
Defendant’s sentence was appropriate. Although Defendant does
not
assert that his sentence is disproportional when compared to
the
sentences of other similarly-situated defendants, 15 because
the
court addresses proportionality in this sense in every death
penalty case, the State will show that any such claim of
disproportionality would also be without merit.
(a) Proportionality as to Defendant’s Culpability
Pursuant to this court’s dictates, the trial court analyzed
whether death was the appropriate penalty in this case, given
that
Defendant was not one of the triggermen. Upon consideration of
all
the circumstances, the court concluded that it was:
In Edmund v. Florida , 102 S.Ct. 3368(1982) the United States
Supreme Court heldthat a sentence of death violated the
EighthAmendment of the United States Constitution“... in the
absence of proof that thedefendant killed or attempted to kill.”
InJackson v. State , 502 So. 2d 409 (Fla. 1986)the Supreme Court of
Florida held that
In order to ensure a defendant’sright to an Enmund factual
findingand to facilitate appellate reviewof this issue, we direct
the trialcourts of this state in appropriatecases to utilize the
followingprocedure. The jury must beinstructed before its penalty
phasedeliberations that in order to
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recommend a sentence of death thejury must first find that
thedefendant killed or attempted tokill or intended that a killing
takeplace or that lethal force beemployed... trial court judges
aredirected when sentencing such adefendant to death to make
anexplicit written finding that thedefendant killed